PLJ 2017 Quetta 104 (DB)
Present : MUHAMMAD EJAZ SWATI & ABDULLAH BALOCH , JJ.
RAHIM MUHAMMAD alias ROHI MUHAMMAD--Appellant
Versus
Syed NOOR SHAH --Respondent
R.F.A. No. 05 of 2015, decided on 29.5.2017.
Balochistan Rent Restriction Ordinance, 1959 (VI of 1959) --
----S. 13--Relationship of landlord and tenant --Eviction petition --Suit for recovery of rentauas --
Decreed --Challenge to --Held: When the Rent controller rendered the findings on the question of
relationship/title, the same cannot be challenged in civil suit unless is it said so. [P. 107] A
PLD 1988 SC 221 ref .
Limitation Act, 1908 (IX of 1908) --
----Art. 110--Arrears of rent limitation --It provides period of three years when the arrears became
due. [P. 108] B
Mr. Abdul Rasheed Awan, Advocate for Appellant.
Mr. Gul Hassan Tareen, Advocate for Respondent.
Date of hearing 26.4.2017.
JUDGMENT
Muhammad Ejaz Swati, J.--Through the instant appeal, the appellant has challenged the
validity of the judgment and decree dated 31st December 2014 (hereinafter the “impugned
judgment and decree”) passed by Civil Judge -IV, Quetta (hereinafter the “trial Court”), whereby
the suit for recovery of Rs. 1,475,750/ - filed by the respondent (plaintiff) was decreed in his
favour to the extent of Rs. 1,392,000/ -.
2. The facts of the case are that the respondent (plaintiff) filed a suit for recovery of Rs. 1,475,750/ - with the averments that he is lawful owner and landlord of Cabin No. 2- 25/4(13)
Street No. 7 Opposite Rabi Center Cut Piece Gali, Quetta (Cabin in question) and the said Cabin was rented out to the appellant (defendant) on monthly rent of Rs. 16,000/ - through Syed
Ainullah. The respondent filed an eviction application against the appellant on 16th March 2010 in respect of Cabin in qu estion on the ground of default and required the Cabin in question by the
resnondent in good faith, bona- fide use occupation of his son Syed Zakria. The trial Court vide
judgment and decree dated 30th April 2011 allowed the application, which was assailed by the
appellant through F.A.O No. 11 of 2011, that too was dismissed by this Court vide judgment
dated 23rd December 2013. The judgment of this Court was assailed by the appellant in Civil Petition Nos. 66 & 67 of 2014 before the Hon’ble Supreme Court of Pakistan, which was
dismissed vide order dated 25th February 2014, however, six months’ time was granted to the
appellant for handing over the peaceful possession of the Cabin in question to the respondent.
3. After above proceedings, the respondent file d the suit, which was contested by the appellant
by way of filing written statement.
4. Out of pleadings of the parties, following issues were framed: --
1. Whether the suit of the plaintiff is not competent before this forum?
2. Whether the claim of the plaintiff for recovery of counsel’s fee, is not maintainable as no
proper procedure has been adopted?
3. Whether the plaintiff is entitled for the relief claimed for?
4. Relief?
5. The respondent (plaintiff) produced PW -1 Ainullah and got recorded hi s statement. In
rebuttal, the appellant (defendant) recorded his statement.
6. The trial Court vide impugned judgment decreed the suit in favour of the respondent as
mentioned hereinabove.
7. Learned counsel for the appellant contended that no agreement/ receipt or supporting
document related to rent of
Rs. 16,000/ - per month was produced by the respondent, but the trial Court without any evidence
determined the rent of the Cabin in question as Rs. 16,000/ -; that during the proceedings before
the trial Co urt, no issue was framed with regard to rate of rent nor it was assessed in the eviction
judgment passed by the trial Court, therefore, the claim of the respondent with regard to exorbitant arrears of rent through the suit for recovery was neither maintain able nor through any
evidence, the said rent was established; that no evidence in support of rate of rent was produced, therefore, the impugned judgment reflects misreading and non -reading of evidence; that the suit
for recovery of the amount was barred by time and the recovery for more than three years was
not permissible under the Limitation Act, 1908 (hereinafter the “Act, 1908”).
Learned counsel for the respondent contended that the findings of the trial Court in respect of
rate of rent and personal bona- fide use of the respondent was challenged by the appellant up to
the Hon’ble Supreme Court and the same was upheld, therefore, there was no cloud in respect of rate of rent; that there were specific findings of the Rent Controller with regard to arrears of the rent against the appellant, for which, the respondent was allowed to seek his remedy from the competent Court of law and those findings too were upheld up to Hon’ble Supreme Court; that
the recovery of arrears of rent was governed under Article 110 of the Act, 1908 when the arrears
became due, therefore, the suit filed in the year 2014, was within time.
8. We have heard the learned counsel for the parties and perused the record. The divergent
pleadings of the parties necessitated four issues, where on the findings of the trial Court are based on proper appreciation of evidence. In Issue No. 1, the appellant raised objection with regard to jurisdiction of the Civil Court. The perusal of evidence indicates that no relevant provision of law had been poi nted out by the appellant to indicate that under which law, the
filing of suit for recovery of arrears was barred. It is necessary to mention here that the trial Court while passing the eviction order in the eviction Application No. 04 of 2010 in its judgm ent
and decree dated 30th April 2011 concluded as under:
“Since Issue No. 1 is resolved in affirmative, hence, applicant is entitled for relief claimed for, therefore, instant application is hereby accepted and respondent is directed to vacate the cabin Be aring No. 2- 25/4 (13) situated in Gali No. 7, Opposite Rabi Center,
Cul Piece Gali Quetta and hand over the vacant possession of the same to applicant with in 60 (Sixty Days) of passing of this order subject to payment of rent. The applicants may approach Civil Court for arrears of rent at the rate of Rs.16000/ - per month from June
2007. There is no order as to Cost.”
9. The aforesaid findings of the trial Court were upheld up to the Hon’ble Supreme Court, therefore, the suit filed by the respondent was ma intainable and the findings of the trial Court in
respect of Issue No. 1 warrant no interference. The trial Court has given findings on Issue No. 2 against the respondent (plaintiff) and held that the respondent is not entitled for recovery of counsel’s fe e. The respondent has not challenged the findings on the Issue No. 2 nor filed any
cross Objection nor there is any evidence to give any finding contrary to findings of the trial Court. The appellant had also challenged the existence of relationship of landlord and tenant between the parties and rate of rent, which was decided by the Rent Controller. The relationship between the parties existed and the rate of rent has also been determined by the Rent Controller. The appellant had challenged the findings of the Rent Controller in F.A.O No. 11 of 2011 and
this Court while dismissing the F.A.O. No. 11 of 2011 observed as under:
“In the peculiar circumstances of the instant case and in view of the above dictum laid down by the Apex Court, in absence of any evid ence to the contrary, the respondent by
virtue of his title is held to be the landlord of the disputed cabin and the appellant is considered as his tenant under the law. The denial of relationship of landlord and tenant by the appellant is held malicious.”
10. It is settled principles that the Rent Controller rendered the findings on the question of relationship/title that the same cannot be challenged in Civil Suit unless it is said so. Reference in this context is to be made to the case of Mir Salah- ud-Din v. Qazi Zaheer -ud-Din, PLD 1988 SC
221, wherein the Hon’ble Supreme Court observed as under:
“In order to appreciate the argument of the learned counsel it is necessary to briefly re -
state the rule laid down in the case of Rehmatullah. It is that:
A ma tter involving even a dispute of title --having once obtained finality in the Rent
Controller’s forum (including the hierarchy of appeal/s and thus the appellate and superior
Courts) cannot be re -agitated in a suit before a Civil Court of general jurisdiction, inter alia ,
because of principle of general res -judicata; the provisions contained in Section 12(2), C.P.C.
read with Section 9, C.P.C. and the provisions contained in Section 15(7) of the West Pakistan
Urban Rent Restriction Ordinance, 1959 (as Amende d).
Some possible exceptions to this rule have also been spelled out in the same case of
Rehmatullah. They are: that the finality attachable to the orders passed under the Rent Restriction Laws by different forums will be neutralized when the order itself says that it is not final regarding a particular issue and that the same could be the said order in itself conveys a clear undisputed intendment that it is not final and visualizes a final determination by a Court of general jurisdiction as was in the case of Rehmatullah; or,
when the relevant issue is determined on the basis of doubts; or, when the party concerned itself instead of getting the final determination in that hierarchy gives up the content therein with a positive statement in this behalf, so as to agitate the question before
Court of general jurisdiction which course in some cases would, be at the risk of a temporary adverse conclusion and/or action against him. “
11. Whereas the rate of rent of the cabin in question is concerned, the learned R ent Controller in
the concluding para of the judgment had specifically observed that “the applicants may approach the Civil Court for arrears of rent at the rate of Rs. 16,000/ - per month from June 2007”. These
findings of the learned Rent Controller have also been sustained by this Court and the Hon’ble Supreme Court in Civil Petition Nos. 66 and 67 of 2014 vide order dated 25th February 2014, therefore, the evidence produced in the instant matter by the respondent with regard to rate of Rs.
16,000/ - per m onth and the arrears of rent from June 2007 to August 2014 (total 87 months) at
the rate of Rs. 16,000/ - per month was based on proper appreciation of evidence. The contention
of the learned counsel for the appellant that the claim of the respondent for ar rears/recovery of
rents from June 2007 till August 2014 was barred by time, is not tenable. Article 110 of the Act, 1908 is relevant provision with regard to limitation for arrears of rent, which provides period of three years when the arrears became due. Reference in this respect is to be made to the case of State Life Insurance Corporation of Pakistan v. Messrs Plasticrafters (Pvt.) Ltd. 2013 SCMR 1623, wherein the Hon’ble Supreme Court observed as under:
“A plain reading of above provision of law shows t hat three years period of limitation
prescribed for filing a suit for recovery of arrears of rent is to commence from the date when payment of such arrears has become due and not from the period to which such arrears relate. In the present case, applying t his principle, it is easily understandable that
the suit amount, as arrears of rent for differential sum payable by the respondent in terms of the earlier order of the Rent Controller dated 1- 12-1997, from the date when the
application for fixation of fair rent under Section 8 of the Ordinance of 1979 was filed by
the appellant, became due and payable by the respondent only upon dismissal of F.R.A.. No. 13 of 1998 on 12- 1-2000, as the earlier order of the Rent Controller then merged into
it. However, in cas e the respondent had not challenged the said order of the Rent
Controller in appeal, in that appeal in that case it would have become due and payable
from 1 -12-1997, when the Rent Controller has for the 1st time fixed the fair rent at Rs.12
per sq. ft. per month from the date of filing of such rent case.
Having discussed as above, in our opinion, all the three Courts below fell in grave error
of law in misinterpreting and misapplying Article 110 of the Limitation Act 1908, which resulted in the dismissal of the suit for recovery filed by the appellant on wrong factual
premises. In the facts and circumstances when the sum claimed in the suit as outstanding arrears of rent had become due on dismissal of the appeal on 12- 1-2000, the period of
limitation prescribed in Column No. 2 of Article 110 had to be computed from 12.1.2000, when suit amount as per adjudication and fixation of fair rent has finally become due. This view of the matter is fully supported from the ratio of above cited three cases, thus, calls f or no further debate on this issue. Besides, the above reproduced letter, Exh.P.6
dated 17- 9-1998, written by the respondent to the appellant and received in their office on
30.9.1998 has further served the purpose of acknowledge of their liability in respect of suit amount from their side as in this letter they have clearly stated that they will abide by the decision of the appellate Court, as and when decided.”
12. In the instant case, admittedly, the learned Rent Controller had passed the judgment and decree dated 30th April 2011, which was assailed by the appellant in F.A.O No. 11 of 2011 and the said F.A.O was dismissed by this Court on 23rd December 2011, whereafter the appellant filed Civil Petition Nos. 66 and 67 of 2014 and the said petitions were dismissed by the Hon’ble Supreme Court of Pakistan vide order dated 25th February 2014 by allowing the
appellant to retain the possession for a period of six months and to handover the possession to
the respondent i.e. in the month of August 2014. theref ore, as per Article 110 of the Act, 1908,
the arrears of rent became due in the month of August 2014 and the suit for recovery filed by the respondent i.e. 18th March 2014 was within time. Though, the respondent had claimed recovery of Rs. 1,475,750/ -, but the trial Court after proper appreciation of evidence decreed the suit only
to the extent of arrears of rent total 87 months at the rate of Rs. 16,000/ - per month. The findings
of the trial Court neither reflect misreading or non -reading of evidence, henc e warrant no
interference by this Court.
In view of the above, Regular First Appeal No. 05 of 2015 filed by the appellant is dismissed. Parties are left to bear their own costs.
Decree sheet be drawn.
(W.I.B.) FAO DismissedThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.